Australian Passports Bill 2004

Bills Digest No. 16 2004–05

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

Commencement: The
formal provisions of the three Acts commence on Royal Assent; the
substantive provisions commence on a day to be fixed by
Proclamation or nine months after Royal Assent (whichever occurs
first).

Currently the
Passports Act 1938 ( the Passports Act ) deals with the
issue and cancellation of Australian passports. It also deals with
offences relating to foreign passports and identity documents (such
as improper use or possession, and falsification of those
documents).

The Australian Passports Bill 2004 ( the
Australian Passports Bill ), the Australian Passports (Application
Fees) Bill 2004 ( the Fees Bill ), and the Australian Passports
(Transitionals and Consequentials) Bill 2004 ( the Transitionals
and Consequentials Bill ), together with the Anti-terrorism Bill
(No. 3) 2004, are designed to split the Passports Act into two
parts: Australian passports and foreign passports.

The Australian Passports Bill sets out the
regime for the issue and administration of Australian passports. It
is designed to combat identity fraud and the possible misuse of
passports, particularly by creating new offences, widening the
scope of old offences, and significantly increasing penalties for
those offences.(1)

The Fees Bill provides for the Minister for
Foreign Affairs ( the Minister ) to make a determination in
relation to application fees. It also provides a formula for
indexing the fees.

The Transitionals and Consequentials Bill
removes reference to Australian passports from the Passports Act
and renames that Act as the Foreign Passports (Law Enforcement
and Security) Act 2004 ( the Foreign Passports Act ). It
operates in concert with the Anti-terrorism Bill (No. 3) 2004,
which inserts new substantive provisions into the Passports Act
(that is, the Foreign Passports Act when renamed). Particularly,
Schedule 1 to the Anti-terrorism Bill (No. 2) 2004 (which was
excised from that Bill and inserted as Schedule 1 to the
Anti-terrorism Bill (No. 3) 2004) amends the Passports Act to
empower a competent authority such as an Australian law enforcement
agency to demand, confiscate and seize foreign passports. It also
creates offences for foreign travel documents.(2) A
detailed discussion of the proposed provisions relating to foreign
passports can be found in the Bills
Digest for the Anti-terrorism Bill (No. 2)
2004.(3)

The three Bills are part of the Government s
stance on national security and law enforcement, particularly the
need to prevent identity fraud. Some recent facts related to
passports, and which seem to provide a reason for the measures
contained in the Bills, include:

in 2003, the Department of Foreign Affairs and Trade ( DFAT )
issued almost one million passports

4,000 of those passports (or less than half a per cent)
contained mistakes, including wrong photographs, names, sex and
dates of birth

Australians lost 30,000 passports in 2003, and

the United States of America ( the US ) is requiring
international visitors to carry machine-readable passports
containing biometric information.(4)

Specifically, according to Mr Bob Nash,
Assistant Secretary, Passports Branch, DFAT, 23,289 passports were
lost in 2002-03 and 9190 passports were stolen. A report by the
Auditor-General in 2003 also revealed that 2079 passports
disappeared after being posted to applicants by DFAT. Mr Nash said
that the number of passports lost in the mail has been reduced by
85 per cent following a decision to send passports only by
registered mail.(5)

Further, in December 2003, DFAT introduced a
floating kangaroo laminated image (known as Skippy ) to Australian
passports, presumably in an attempt to combat identity fraud and to
deter the fabrication of Australian passports.(6)
According to the Minister, identity fraud costs Australia $1.1
billion a year.(7) DFAT received $2.2 million in the
2004 05 federal budget to test a prototype biometric passport; it
has already received $6.6 million in research
funding.(8) The Australian Customs Service also received
an extra $3.1 million in the 2004 05 federal budget to help
complete its facial-recognition passport system known as
Smartgate.(9)

According to an editorial in the Herald
Sun (Melbourne) newspaper on 6 April 2004:

Terrorists use doctored passports to move around
the world. Some have deliberately reported their passports lost to
get a replacement that does not reveal details of their earlier
travels.

Opportunist members of the public falsely report
their passports stolen then sell them for up to $10,000 a
heaven-sent source of a false identity for a
terrorist.(10)

Such comments may cause concern, particularly
when coupled with a statement in an article in the Sunday
Age newspaper on 6 June 2004 to the effect that the passport
crackdown:

comes as the Government is investigating how
Saleh Jamal, who was arrested last weekend in Lebanon on terrorist
charges, was able to leave Australia despite being on bail over a
shooting at a Sydney police station. It is believed Jamal fled
Australia using a genuine passport belonging to someone
else.(11)

DFAT acknowledges that there is a growing
problem of impostors using legitimate passports. Mr Nash said: It
happens when somebody who happens to look a bit like the bearer,
simply assumes that identity. They don t do anything to the
document and this is happening in increasing numbers . DFAT is
hopeful that the use of facial recognition technology will overcome
the problem.(12)

The Australian Passports Bill is designed to
address such issues. For example, clause 15
provides that the Minister may refuse to issue an Australian
passport to a person who has lost (or had stolen from him or her)
two or more passports in the five years before the passport
application under consideration. Subclause 20(2)
provides that the Minister may, by a determination, specify the
time at which an Australian passport ceases to be valid. Presumably
the Minister could use this power to specify a short validity
period for a passport issued to a person who has lost two or more
passports. Further, and most important, clause 47
provides that the Minister may authorise the use of particular
methods and technologies that are to be used for the purposes of
confirming the validity of evidence of the identity of an
Australian passport applicant or holder.

The ALP has not commented directly on the
Bills. However, on 5 April 2004, Mr Kevin Rudd, Shadow Minister for
Foreign Affairs and International Security, said that he thought
facial recognition technology had bipartisan support. He went on to
question what border security measures Australia should have in
place in relation to passports, saying:

what should we be doing here? Well, Mr Downer has
been developing biometric passports here in Australia tick for him,
tick for the government, I think that s the right thing to go. But
what I have to say, what I'm unclear on, Joe [Mr Joe Hockey,
Minister for Small Business and Tourism], is will we in Australia
now be requiring all incomings from around the world to use
biometric passports and do like the Americans in the meantime,
which is to conduct these photographic and fingerprint tests for
people coming in to check them against international terrorism or
crime databases?(13)

Neither the Australian Democrats nor the
Greens has commented on the Bills.

As mentioned, the Australian Passports Bill
replicates provisions in the Passports Act applicable to Australian
passports and other travel documents. It is a more organised, less
convoluted piece of legislation than the present Act. For example,
it clarifies and simplifies the language used in the Passports
Act.

However, the Australian Passports Bill makes
four substantive changes to the present law:

it allows the Minister to adopt particular methods or
technologies for purposes such as identification

it changes the grounds and processes for the refusal and/or
cancellation of Australian passports

it adds new offences and substantially increases penalties for
offences, and

it contains new measures concerning the use of information and
privacy.

As mentioned in the Background section to this
Digest, clause 47 provides that
the Minister may authorise (by a determination) the use of
particular methods and technologies for the purposes of confirming
the validity of evidence of the identity of an applicant for an
Australian travel document or the holder of such document or for
performing other function connected with the Bill.

The Minister has said that the Australian
Passports Bill provides for the introduction of facial biometric
technology as an effective means of verifying identity
.(14) While the use of such technology may lie behind
the inclusion of clause 47, biometric technology
(howsoever described) is not mentioned at all in the Bill. The
Explanatory Memorandum suggests that the phrase methods (and
technologies) in clause 47 could include facial
biometrics (being measurements of a person s face that can allow a
computer to verify the identity of a person). However, given the
breadth of the language used in clause 47 (or
rather, the lack of any specificity as to what method or technology
might be used), the phrase could also include fingerprinting or the
use of genetic information (such as DNA testing and
comparison).

In terms of biometrics (which includes facial
recognition, fingerprinting and iris scanning), the validity of
evidence of the identity of a person could be confirmed by two
means: Machine Readable Travel Documents (MRTDs) and a database of
biometric details.(15)

This method uses a MRTD in which a data-chip
is embedded. A computer can then access biometric data from the
chip, matching the data with the biometrics of the person
purporting to be the passport-holder. In some ways, this is an
automated version of the current system of identity confirmation
whereby a human Customs or Immigration (or like) officer manually
matches a traveller with his or her photographic identification.
This method does not rely on a database of passport-holders
biometric details. Biometric details are stored in the data-chip;
the traveller is photographed by a camera at a customs or
immigration or like entry or exit point; and the machine reading
the travel document compares the traveller s facial characteristics
shown in the photograph with the information stored on the
data-chip in order to verify the person s identity.

In May 2003, the International Civil Aviation
Organization (known as ICAO) adopted a global, harmonized blueprint
for the integration of biometric identification into passports and
other MRTDs, saying:

The increased use of biometric-enhanced MRTDs will
lead to speedier passage of travellers through airport controls,
heightened aviation security and added protection against identity
theft.(16)

ICAO s blueprint relies on facial recognition
as the globally interoperable biometric for machine-assisted
identity confirmation with MRTDs . According to a press release
issued by ICAO in May 2003, in an analysis of various available
biometrics, the face rated highest in terms of compatibility with
key operational considerations, followed by fingers and eyes
.(17) By February 2004, ICAO had adopted facial
recognition as the global standard for biometric identifiers in
passports. Originally, the US required travellers from Visa Waiver
Program (VWP) countries to hold MRTDs with embedded biometric
identifiers that complied with the ICAO standard if they wished to
enter the US after 26 October 2004.(18) According to the
UK Passport Service, the US Senate has now endorsed a one-year
deferral of this requirement, which will come into effect once the
President has signed it into law .(19)

DFAT has announced that it is looking at this
method and has produced a prototype MRTD that stores an electronic
image of a person on a passport-inserted computer chip that would
be matched with a photograph taken of the traveller at customs
checkpoints . DFAT is seeking tenders for the technical aspects of
the MRTD.(20) As mentioned earlier, the Australian
Customs Service has also been trialling a facial recognition model
known as Smartgate at Sydney International Airport. The trial is
currently limited to the verification of the identity of Qantas
aircrew who have volunteered to participate in the
trial(21) The Government now plans to extend the
automated system to holders of prototype Australian biometric
passports, selected passengers [such as frequent flyers] and
enrolled aircrew at two international airports .(22)

Under this method, authorised persons could
access the database via network-connected computers at Australian
ports, both when passengers enter and leave Australia. The database
does not require a MRTD the authorised person simply accesses the
biometric data on demand from the central database. This is the
model the US intends to use in its US-VISIT scheme, whereby the US
will use biometrics to verify the identity of visitors from non-VWP
states and visitors from VWP states that have not yet developed a
biometric MRTD. After 30 September 2004, it will apply to visitors
from VWP states too:

US-VISIT requires that most foreign visitors
traveling to the U.S. on a visa have their two index fingers
scanned and a
digital photograph (PDF)
taken to verify their identity at the port of entry. Visas
are required for most students, business travelers (depending on
their length of stay) and millions of other visitors, regardless of
where they live. Currently, US-VISIT will not enroll visitors
seeking admission under the Visa Waiver Program.
However, by September 30, 2004, US-VISIT procedures will be
expanded to include visitors traveling under the Visa Waiver
Program arriving at air and sea ports of entry. It does not apply
to U.S. citizens.(23)

According to the US Department of Homeland
Security (which administers the US-VISIT program), the US is using
biometrics to expedite processing at our borders . When a person
applies for a visa to travel to the US, his or her biometrics are
collected and checked against a database of known criminals and
suspected terrorists . On arrival in the US:

biographic and biometric data are used to verify
[the visitor s] identity against the data captured by the State
Department at the time the visa was issued to ensure that [the
visitor is] the same person who received the visa. In
addition, [a] digital picture [of the visitor] that was taken at
the visa-issuing point is displayed to the [Customs and Border
Protection Officer ] for visual comparison and confirmation;

The language of the Bill may be broad enough
to allow either of these two methods to be used. Indeed, the
language is sufficiently broad to permit other methods to be used
too either alone or in concert. If the Minister chooses to use a
database-based method, a database of biometric information for
every holder of an Australian passport or travel document will need
to be created. The Australian Passports Bill provides no rules
governing how such information is to be collected, stored,
protected or used, but the Minister could determine such rules
under subclause 47(2). The Privacy Act
1988 ( the Privacy Act ) would also impose limitations on the
collection, use and disclosure of personal information.
Clause 47 would give the Minister a very broad
power to make rules for the collection of information, including
the adoption of biometric technology. Parliament would have little
role in developing particular technological standards or privacy
safeguards applicable to those standards. However, any ministerial
determination would be a disallowable instrument (under
clause 58) and subject to parliamentary
scrutiny.

In the absence of any particular legislative
provision (or ministerial determination) dealing with the use or
management of information collected under the proposed Australian
Passports Act, the information would be governed by the Information
Privacy Principles (IPPs) set out in the Privacy
Act.(24) The IPPs place limits on the collection,
storage, use and disclosure of information collected by the
Government. Particularly, IPP 11 provides that information can only
be disclosed where reasonably necessary for the enforcement of the
criminal law or of a law imposing a pecuniary penalty, or for the
protection of the public revenue , regardless of the purpose for
which the information was collected. Clause 46 is
in similar but more specific terms, enumerating the circumstances
where the Minister may disclose personal information for law
enforcement, national security, family law or other Commonwealth
law purposes. Accordingly, a database of passport-holders biometric
information (including fingerprints) could become a de
facto national biometric database for use by the Government in
a broad range of circumstances.

It may be appropriate for the legislation to
refer to a specific identification method or technology in order to
maintain the integrity of the passport/travel document system.
Alternatively, the legislation could specify what types of
biometrics can be used and the purposes for which any personal
information can be used. Specific limitations on the use of such
technology could be provided in the legislation. Further, it could
specify that an independent person or body is responsible for
ensuring that information is collected, used and disclosed in an
appropriate manner.

Recently, the Migration Legislation Amendment
(Identification and Authentication) Bill 2003 raised similar
privacy issues. That Bill was considered by the Senate Legal and
Constitutional Legislation Committee. The
report of that Committee canvasses some of the privacy issues
associated with the use of biometric information. Importantly, the
Committee recommended that one identification method only should
form the framework for the legislative regime, although that
recommendation is not reflected in the Migration Legislation
Amendment (Identification and Authentication) Act 2004.

Currently, the Minister (or an authorised
officer) may issue a passport to Australian citizens. The Minister
must not refuse to issue a passport unless a ground for refusal
applies. The situation is unchanged under the Australian Passports
Bill, although the language of the Bill emphasises the entitlement
of Australian citizens to hold a passport unless a ground for
refusal applies.

The following table sets out a comparison of
the grounds for the Minister to refuse to issue a passport in the
current Act and the Australian Passports Bill:

Ground

Passports Act
1938

Australian Passports Bill
2004

No proof of citizenship or identity

No equivalent provision

Minister must not issue a passport unless
satisfied of the identity of the applicant and that the applicant
is an Australian citizen (clause 8)

Minors

Without consent of each parent or guardian or
a court order, except in special circumstances at the discretion of
the Minister (section 7A).

Similar to Passports Act, although the
Minister would be able to refuse to exercise his/her discretion to
issue the passport because the matter should be dealt with by a
court (clause 11)

Law enforcement

Persons under warrant for arrest or persons
required to remain in Australia under a court order or parole or
bail condition etc (section 7A)

Minister must not issue a passport if
he or she receives a request from a competent authority to the
effect that the applicant is believed on reasonable grounds to be
the subject of an arrest warrant, or required to remain in
Australia under a court order, parole or bail condition (or like
condition) or under an Australian law (clause
12)

Ground

Passports Act
1938

Australian Passports Bill
2004

International law enforcement co-operation

No equivalent provision

Minister may refuse to issue a
passport if he or she receives a request from a competent authority
to the effect that the applicant is believed to be the subject of
an arrest warrant (etc) in respect of a serious foreign
offence in a foreign country (clause 13)

Persons who owe money to the Commonwealth

Officers may not, unless directed by the
Minister or in special circumstances, grant passports to persons
who owe money to the Commonwealth in respect of debts involving
loans from the Commonwealth while abroad (section 7C)

Similar to Passports Act, although Minister
may only intervene to grant a passport where satisfied that debtor
s welfare would be adversely affected if unable to travel overseas
or if debtor urgently needs to travel overseas because of family
crisis (clause 16)

Concurrently valid passports

Passports cannot be issued where a valid
passport for the person remains in force, unless directed by the
Minister or there are special reasons to do so (section 7D)

Similar to Passports Act, although no
provision for Minister to intervene, except according to
circumstances specified in a Minister s determination
(clause 17)

Potential
for harmful conduct

Minister may prevent passport being issued to
a person where he or she has formed the opinion that, if issued a
passport, the person would be likely to engage in conduct that
might prejudice national security, endanger the health or physical
safety of other persons, or interfere with rights and freedoms of
other persons (section 7E)

Similar to Passports Act, but a passport may
also be refused where a person is likely to engage in conduct that
might constitute an indictable offence against the Bill or another
Commonwealth law specified in Minister s determination. Also a
competent authority must request refusal before the Minister may
refuse a passport (although the Minister may define competent
authorities by a determination, so retains control of the process)
(clause 14)

Repeated
loss or theft

No
equivalent

Minister
may refuse a passport to a person who has lost, or had stolen, 2 or
more passports within 5 years (clause 15).

Compiled by Jacob Varghese, Law and Bills
Digest Section, 27 July 2004.

There are two key features of the changes:

the grounds for refusal of a passport have been expanded to
include international law enforcement co-operation and where there
are grounds to believe the person is likely to engage in conduct
that would constitute a specified Commonwealth indictable offence,
and

there are clearer lines of decision-making, including some
fetters on the use of the Minister s discretion. For example, the
Minister may now require advice from a specified competent
authority before taking action to refuse a passport.

Under the current Act, the Minister may cancel
a passport if he or she becomes aware of circumstances which, had
they existed immediately before the passport was issued, may have
or would have prevented the issue of the passport (being also the
grounds for refusing a passport set out in sections 7A-7B of the
Passports Act). That is, a passport may be cancelled if the person
was an unmarried minor without the necessary consents to obtaining
a passport; if the person is subject to an arrest warrant or court
order or other similar circumstance; if the person owes money to
the Commonwealth; and if the person already holds a valid passport.
The Minister may also cancel a passport where he or she forms the
opinion that the person, if granted a passport, would be likely to
engage in conduct of the type listed in section 7E of the Passports
Act (such as conduct prejudicial to national security or which may
endanger the health or physical safety of other persons).

Further, the Minister retains a general power
to cancel a passport for any other reason, although this is subject
to review by the Administrative Appeals Tribunal ( the AAT ).

The Australian Passports Bill expands this
list of grounds for cancellation to include:

the death of the passport-holder (proposed paragraph
22(2)(c))

a request for cancellation by a competent authority
(subclauses 12(1), 13(1), 14(1) or 16(1)), and

the existence of circumstances specified in a ministerial
determination.

The Minister may also make a determination
outlining the time and circumstances in which passports cease to be
valid. This power could allow the making of additional rules for
cancellation. The Minister also retains a general discretion to
cancel travel documents (subclause 22(1)).

The Australian Passports Bill provides that
the Minister can review certain decisions made by his or her
delegate. The types of decisions reviewable by the Minister are set
out in clause 48. They include a decision to issue
an Australian travel document (including a passport, but excluding
a child s passport); a decision to refuse to issue an Australian
travel document; a decision to cancel an Australian travel
document; and a decision to waive or refund an application fee
payable under the proposed Australian Passports (Application Fees)
Act 2004.

The AAT may review decisions made by the
Minister: clause 51. Where the decision involves a
decision in relation to a refusal or cancellation request from a
competent authority under subsection 13(1) or 14(1) (either by a
delegate or by the Minister at first instance or on review), the
Minister may certify that the decision involved matters of
international relations or criminal intelligence : subclause 51(2).
If the Minister has given such a certificate, the AAT may only
affirm the Minister s decision or remit the decision to the
Minister for reconsideration in accordance with any directions or
recommendations of the Tribunal .

Proposed Part 4 contains
offences. Many of these offences are substantively similar to those
under the Passports Act, although worded to comply with modern
criminal law drafting practices. The effect of the redrafting may
sometimes broaden the scope of the offence (for example, the
current offence of providing false and misleading statements in
relation to an application is extended to cover false and
misleading statements, information and documents). In other cases,
there are subtle changes to the mental element required for an
offence (for example, intentionally destroying a passport becomes
intentionally engaging in conduct reckless as to whether the
document might be destroyed by that conduct).

However, there are some notable substantive
changes in the Bill:

offences will apply with extended geographical
jurisdiction (that is, a person may be liable for prosecution
for an offence against the Bill regardless of whether or not the
conduct constituting the alleged offence occurs in Australia and
whether or not a result of the conduct constituting the alleged
offence occurs in Australia (clause 28, applying
section 15.4 of the Criminal Code Act 1995)

penalties have been significantly increased from a maximum fine
of $5000 and/or a maximum of two years imprisonment to a maximum
fine of $110,000 and/or a maximum of 10 years imprisonment
(clauses 29 40), and

some new crimes have been created including:

selling an Australian travel document (clause
33)

obtaining an Australian travel document through dishonesty or
theft (clause 35)

bringing, taking or sending across international borders a false
travel document or a document issued to someone else
(clause 37),(25) and

abuse of public office (involving the dishonest use of powers
under the Bill for personal benefit or to the benefit or detriment
of another person) (clause 40).

It should be noted that in many cases conduct
that would become an offence under these provisions could already
amount to criminal conduct under existing offences. That said, the
main effects of these new provisions would be to (a) make
prosecutions simpler where evidence is difficult to obtain for
existing offences, particularly where ancillary offences (aiding,
conspiracy, attempt) are involved and (b) spell out offences with
greater clarity. However, the stark increase in penalties may be
cause for concern.

Clauses 42 to 46 provide
rules allowing the Minister to obtain, use and disclose personal
information for various purposes. The Minister may determine the
specific methods for the disclosure and use of information. The
rules provide more specific circumstances for the collection, use
and disclosure of information than those contained in the Privacy
Act.

The Minister would be allowed to request and
receive personal information for the purpose of performing
functions under this Bill from any person specified in a Minister s
determination in relation to an applicant for a travel document, a
person connected with an application (for example, a witness to an
application) or a person who holds a travel document.

The Minister would be allowed to disclose
personal information to any person specified in a Minister s
determination for the purposes outlined in clause
46, including verifying information provided by an
applicant, facilitating international travel by the applicant; law
enforcement; national security and the operation of family law.
These broad purposes are extended further by the inclusion of
paragraph 46(f) which refers to the purposes of a
law of the Commonwealth specified in a Minister s determination
.

These provisions could make the passports
system a process by which the Commonwealth could obtain and
centralise a large amount of personal information about Australian
passport-holders which could be put to a very broad range of uses
with minimal parliamentary scrutiny.

According to a media release issued by the
Minister on 17 February 2004 (four months before the Australian
Passports Bill was introduced), a Passports Legislation
Consultation Group had been established. The intention was to form
a consultation group drawn from privacy, human rights, consumer and
citizenship groups and from travel, financial and biometrics
industries with ex officio participation by Australia s Privacy
Commissioner .(26) The consultation group is not
mentioned in the Second reading speeches or the Explanatory
Memorandum for the Bills, and it is not clear what role the group
played in the drafting of the legislation. Indeed, some
stakeholders were less than impressed by the level of consultation.
For example, the Australian Privacy Foundation, which proclaims
itself to be the primary association dedicated to protecting the
privacy rights of Australians , was concerned that the consultation
was not as effective as it should be .(27) In
submissions made to DFAT, it complained about not being provided
with materials, the insufficiency of the information that DFAT did
provide and the time frame for consultation. In fact, the Privacy
Foundation went so far as to suggest to DFAT:

Because of the lack of information and the lack of
any chance of discussion affecting the proposal, your process could
not and did not meet [DFAT s] professed objective of providing
Ministers with confidence that all issues have been identified
through the legislative process .(28)

According to an article on the website,
Australian IT (being the online version of The Australian
newspaper), on 24 February 2004, the Australian Privacy Foundation
had warned that passports containing biometric identifiers could
develop into a de-facto Australia card .(29) The article
also quoted Australian Consumers Association IT policy adviser,
Charles Britton, as being concerned about the great rush to develop
something that s going to affect some 8 million passport holders .
Mr Britton went on to say:

The discussion paper [released by DFAT] is
certainly pretty light on You d think something that has such
serious implications for citizens would be worthy of greater
justification. As always, the quality of discussion is dictated by
the nature of documentation. It s a bit like painting if you haven
t done the surface preparation.(30)

The Southern Cross Group is another
organisation which was involved in a consultation process, but it
is not clear if it was actually involved in the Passports
Legislation Consultation Group. According to its website, the
Southern Cross Group is:

an international non-profit advocacy and support organisation
for the Australian diaspora. The Group works for changes to
existing law and policy where these adversely impact the Australian
expatriate community, which now numbers some 860,000 people in all
corners of the globe.(31)

The Southern Cross Group believes that there
is potential for the new Act to adversely impact overseas
Australians . In an e-Bulletin issued on 15 March 2004, the Group
noted that its representative was the sole registrant for a public
consultation meeting with DFAT in Canberra. At that meeting, the
DFAT representative apparently indicated that there would be little
change to the present passport application arrangements, insofar as
the DFAT s intended biometric process uses photos submitted by the
applicant as is the case now people will not have to attend an
Embassy or Consulate to have a special photo taken . Nonetheless,
the Group had reservations after the meeting, particularly about
increased fees or shorter documents for persons who lose more than
two passports; whether applicants have to travel to embassies or
consulates; and issues surrounding passports for children born to
Australians overseas. The e-Bulletin does not mention privacy
concerns.(32)

Proposed Part 3 outlines the
powers of officers. The term officers includes DFAT staff,
diplomatic staff of overseas missions, Customs officers, AFP
officers, state and territory police, and any person authorised by
the Minister. Proposed Part 3 also includes
offences relating to failure to obey (lawful) demands of
officers.

Under the Passports Act, the powers of
officers are contained in section 9 and other relevant provisions.
These powers are retained in substance in the Bill, but are
structured differently (clauses 23 and 24).

The Bill also empowers officers to demand that
a person owing money to the Commonwealth for financial assistance
received while abroad surrender his or her Australian travel
document (clause 25).

Further, the Bill empowers a Customs officer
to seize a document that is not in the possession or control of any
individual where the officer suspects on reasonable grounds that
the document has been used in the commission (or attempted
commission) of an offence against the Bill (subclause
26(1)). A Customs officer may also search a container
(including baggage) not in the possession or control of any
individual where the officer suspects on reasonable grounds that
the container contains a document used in the commission of an
offence against the Bill (subclause 26(2)).

Clause 54 deals with the form
of Australian travel documents. Subclause 54(3)
provides that the name of the person to whom the document
(including a passport) is issued must appear on the document.
Except in circumstances specified by a ministerial determination,
the name must be:

the name on the person s birth certificate

the name on the person s certificate of Australian
citizenship

the name on a certificate, entry or record of the person s
marriage, being a certificate granted or entry or record made by
the relevant state or territory Registrar of births, deaths and
marriages, or

the name included, by way of effecting a name change of the
person on a register kept by the state or territory Registrar of
births, deaths and marriages.

The effect of the clause is that women who
marry overseas will have to change their name by deed poll if they
wish to use their married name on Australian travel documents.
Already two women (at least) have been affected by this new policy,
which has been contained in a DFAT directive. One woman changed her
name by deed poll at the cost of $180, while the other paid a $400
fee to Qantas to reissue in her maiden name a ticket booked in her
married name. A DFAT spokesperson said that the policy was aimed at
combating identity fraud ; that it did not call into question the
legitimacy of overseas marriages .(33) According to the
Explanatory Memorandum for the Bills, the circumstances to be
specified by ministerial determination as exceptions to subclause
54(3) are those most commonly due to legal processes in States,
Territories or overseas . Presumably this phrase includes overseas
marriages, but the only circumstances noted in the Explanatory
Memorandum are a court order changing a child s name, a person
reverting to a previous name (after divorce or death of a spouse)
and name changes by Indigenous Australians.(34)

Primarily, the Fees Bill empowers the Minister
to specify application fees for Australian passports by way of a
determination. The fees are for applications for passports,
travel-related documents, endorsements on Australian travel
documents and the making of observations on Australian travel
documents : clause 4.

Sub-clause 4(5) provides that
the fees specified by the Minister are imposed as taxes . According
to the Second reading speech for the Fees Bill, this statement
overcomes the longstanding technical constitutional debate over
whether passport fees are a tax or a cost recovery.(35)
It is not entirely clear what debate is being referred to, except
insofar as the question of whether a fee for service (or cost
recovery measure) generally is a tax has often been the subject of
High Court challenges to legislation. Nonetheless, applying the
reasoning of Brennan J (as he then was) of the High Court of
Australia in Cunliffe and Another v The Commonwealth of
Australia (1994) 182 CLR 272 (1994) 124 ALR 120, it is likely
that taxing the issue of a passport or other travel document is
within parliamentary power to legislate.

As the Bill imposes taxation, it can only deal
with that issue: section 55 of the Constitution.

Subclause 5(1) provides that
a determination made under proposed section 4 may
specify different application fees for different circumstances .
There is no need for the fee to be fair and reasonable. Indeed,
subclause 5(3) provides that the application fee
need not bear any relationship to the cost of issuing the passport
or endorsing or making an observation on an Australian travel
document. The fee is therefore clearly not a fee for service but is
a tax (as stated in subclause 4(5)).

Proposed paragraph 5(2)(a)
provides that the maximum fee for the first financial year of the
Bill s operation is $1,000. It is not clear how this amount is
calculated. It seems somewhat high, indeed exorbitant, when regard
is had to present application fees:

While the Minister has said that he may impose
higher fees on people who persistently lose passports , it is not
clear what amount that fee may be, nor what fee he might impose on
a first-time passport applicant.(37)

Clause 6 sets out the formula
for calculating the indexation figure applicable to the maximum fee
in clause 5(2). It is calculated by reference to
the Consumer Price Index and is similar to formulae used in the
Income Tax Assessment Act 1936 and the Social Security
Act 1991.

Clause 7 provides that the
fee is payable when the application is made.

The Bill does not specifically provide for the
waiver or refund of application fees although by virtue of
clause 48 of the Australian Passports Bill, waiver
or refund (in whole or part) must be possible.

Clause 5 of the Transitionals
and Consequentials Bill provides that a passport issued under the
Passports Act is taken to be a passport issued under the proposed
Australian Passports Act 2004. Unless cancelled by the Minister,
the passport continues to be valid until the expiry date specified
in the passport. Likewise, clause 6 provides that
travel-related documents (being convention travel documents,
certificates of identity or documents of identity) issued under the
Passports Act are taken to be issued under the proposed Australian
Passports Act. Unless cancelled by the Minister, such documents are
also valid until the expiry date specified in the document.

Clause 8 provides that an
application for an Australian passport made but not yet determined
under the Passports Act is taken to be an application made under
the proposed Australian Passports Act. Likewise, clause
9 provides that an application for a convention travel
document, certificate of identity or document of identity made
under the Passports Act is taken to be an application made under
the proposed Australian Passports Act.

Clause 10 provides that
section 11A of the Passports Act (which deals with the review of
certain decisions relating to the issue and cancellation of
passports) continues to apply to decisions made under the old Act
even after it is repealed. The retention of the provision should
make it easier to determine a review of a decision made under the
Passports Act.

Clause 11 provides that the
Governor-General may make regulations prescribing matters of a
transitional nature arising out of the repeal of Part 1A of the old
Act and the commencement of the new Act . However, it should be
noted that there is currently no Part 1A contained in the Passports
Act. Part 1A is to be introduced by item 12 of Schedule 1 to the
Anti-terrorism Bill (No. 3) 2004. It deals with Australian
passports.

Schedule 1 to the
Transitionals and Consequentials Bill contains consequential
amendments to various Acts following the passage of the proposed
Australian Passports Act 2004. Items 1 to 7
replace references to the Passports Act with references to the
proposed Australian Passports Act 2004 in the Administrative
Appeals Tribunal Act 1975, the Australian Security
Intelligence Organisation Act 1979, the Crimes Act
1914, the Criminal Code Act 1995 and the
Migration Act 1958.

Items 8 to 31 amend the
Passports Act.

Item 8 amends the title to
read [an] Act relating to foreign passports and other foreign
travel documents . Item 9 amends the short title
to read Foreign Passports (Law Enforcement and Security) Act 2004 .
Items 10 to 23 repeal various provisions and
definitions relating to Australian passports such provisions and
definitions are not required in an Act dealing only with foreign
passports and travel documents.

Item 24 repeals Part 1A
(which, as mentioned above, deals with Australian passports).
Items 25 to 31 are said to amend sections 14 to 25
of the Passports Act, but it should be noted that none of these
sections currently appears in that Act they are to be introduced by
the Anti-terrorism Bill (No. 3) 2004.

Item 25 replaces the
definition of competent authority in section 14, which deals with a
request relating to international law enforcement
co‑operation. The effect of the amendment would be to
authorise a member of the diplomatic staff of an Australian mission
or a consular officer at an Australian consulate to request the
Minister to order the surrender of a person s foreign travel
documents (under section 16) where the person is the subject of an
arrest warrant issued in a foreign country in respect of a serious
foreign offence; is prevented from travelling internationally by
force of an order of a foreign court, parole or bail or like
condition made by a foreign court; or a foreign law.

Likewise, item 27 replaces
the definition of competent authority in section 15, which deals
with a request relating to potential for harmful conduct. The
effect of the amendment would be to authorise a member of the
diplomatic staff of an Australian mission or a consular officer of
an Australian consulate to request the Minister to order the
surrender of a person s foreign travel documents (under section 16)
where the competent authority suspects on reasonable grounds that
unless a person s foreign travel documents are surrendered, the
person would be likely to engage in conduct that might be
prejudicial to Australian security (or that of another nation);
endanger the health or physical safety of other persons; interfere
with rights or freedoms of other persons set out in the
International Covenant on Civil and Political Rights; or constitute
an indictable offence against an Australian (Commonwealth) law.

Item 29 provides that the
Minister may delegate his power to order the surrender of foreign
travel documents under section 16 to an SES employee who must
comply with any directions of the Minister. That term is not
defined in the Passports Act nor the three Bills, and presumably
has the meaning given by section 34 of the Public Service Act
1999, being SES employees are those APS employees who are
classified as SES employees under the Classification Rules .

Items 30 and 31 amend section
25 to provide that the Governor-General may make regulations
prescribing matters required or permitted by the proposed Foreign
Passports (Law Enforcement and Security) Act 2004 or necessary or
convenient for carrying out or giving effect to that Act.

Biometrics seems to be one area where
technological and practical considerations have not been able to
keep pace with the law, both in Australia and overseas. The
reference in clause 47 to the use of methods
(including technologies) may be unnecessarily broad. Given that
DFAT is developing a prototype biometric passport (which seems to
rely on facial recognition technology), it might be more
appropriate for the Australian Passports Bill to refer specifically
to that technology.

The Minister s power to use personal
information (and to determine how that information is to be
collected, used and disclosed) is broad. Some participants in the
public consultation process raised concerns about privacy issues.
It may therefore be appropriate for Parliament to refer the Bills
(particularly the Australian Passports Bill) to a Senate Committee
so that all issues can be properly considered.

As discussed in the Main Provisions section of
this Digest in relation to the Fees Bill, the calculation of
application fees for the issuing and/or endorsing of a passport or
travel document may be unfair and unreasonable for two main
reasons. The maximum fee of $1,000 (provided in subclause
5(2) of the Fees Bill) appears to be arbitrary,
particularly when compared with the fees charged at present.
Second, subclause 5(3) of the Fees Bill provides
that the fee need not bear any relationship to the cost of issuing
or endorsing the passport or travel document.

The Australian Passports Bill increases the penalties for fraud
currently contained in the Passports Act from a maximum of $5,000
to a maximum of $110,000; and from a maximum of two years
imprisonment to a maximum of ten years imprisonment: see
clauses 29-40. See also: Alexander Downer,
Minister for Foreign Affairs, Second reading speech: Australian
Passports Bill 2004 , House of Representatives, Debates,
24 June 2004, pp. 31450-31451.

The term foreign travel document is inserted into the section 5
of the Passports Act by item 7 of Schedule 1 to the
Anti-terrorism Bill (No. 3) 2004. It is defined to mean a foreign
passport or a document of identity issued for travel purposes by or
on behalf of the government of a foreign country (whether or not
also issued for another purpose) .

A MRTD has two lines of letters, numbers and chevrons (
>>>>> ) as seen in current Australian passports. For
further information about MRTDs, see UK Passports Service,
Visa-Free Travel to the USA for British Visitors , UKPS
News, 28 July 2004, available electronically at http://www.ukpa.gov.uk/news/news.asp?intElement=808
(as at 2 August 2004).

Senator Chris Ellison, Minister for Justice and Customs,
Alexander Downer, Minister for Foreign Affairs and Senator Amanda
Vanstone, Minister for Immigration and Multicultural and Indigenous
Affairs, Development of biometrics for border control
,Joint Media Release, 12 May 2004,
available electronically at:
http://www.customs.gov.au/site/index.cfm?nav_id=670&area_id=5
(as at 30 July 2004). See also endnote 9.

A person may be liable for prosecution for a crime under
proposed section 37 even if engaged in an innocent purpose. For
example, a person may hold dual citizenship and be entitled to
travel on an Australian passport or one issued by Country X. The
person may depart Australia on the foreign passport and forget to
take his or her Australian passport with him or him. If a relative
later takes the Australian passport to the person, he or she may be
liable for prosecution under this provision.

Morag Donaldson
4 August 2004
Bills Digest Service
Information and Research Services

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